Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
MEEK et al. v. FOWLER et al.a1
This is an appeal from an order granting a motion for new trial. Plaintiffs moved for new trial and an order was made granting it as to defendants H. M., Watha B., and Harold M. Fowler, and denying it as to defendants Edgar M. and Mary Louise Peckinpah. The order stated that it was granted upon all grounds specified in the motion, which included insufficiency of the evidence to justify the judgment, and that the judgment was contrary to law.
Anne Meek was the minor daughter of Lillian L. and W. J. Meek. Harold M. Fowler was the minor son of Watha B. and A. C. Fowler (incorrectly named in the title of the complaint as H. M. Fowler). Harold's father had signed his application to the division of motor vehicles for an operator's license.
A study of the record discloses that at about 7 o'clock on the evening of August 14, 1932, Anne Meek and Elmo L. Stevenson were riding as guests of Harold in an automobile which was owned by his mother and which he was using with her consent. Harold was driving south on Del Rey street in Fresno county. As he approached the intersection of Del Rey street with Belmont avenue, which is an obstructed one as defined in section 113 of the California Vehicle Act (St. 1923, p. 553, § 113, as amended by St. 1931, p. 2120), he saw, through the trees, when he was about one hundred feet north of the intersection, the flash of the lights of a car approaching from the west. The approaching car was then about one hundred feet west of the intersection. Harold increased the speed of his car so that he entered the intersection at between forty and forty-five miles an hour. He did not see the other car, after he glimpsed its headlights, until he entered the intersection, when it was between five and seven feet from him. Both cars entered the intersection at about the same time and crashed near its center. It should be observed that the other car, which was being driven by Edgar M. Peckinpah, entered the intersection on Harold's right. Section 131, California Vehicle Act (St. 1923, p. 560, § 131, as amended by St. 1931, p. 2126). Both passengers had remonstrated with Harold at the speed at which he was driving his car.
Trial judges are given wide latitude and discretion in passing on motions for new trial, and an order granting a motion will not be disturbed on appeal unless it appears that there has been an abuse of discretion on the part of the trial judge. In Preluzsky v. Rittigstein, 51 Cal. App. 427, 196 P. 917, 918, it was said: “Where the court, in the exercise of its authority therein, has granted a new trial, and the case-made shows a reasonable or even fairly debatable justification under the law for the action taken, such action will not be set aside. Harrison v. Sutter Street Ry. Co., 116 Cal. 156, 47 P. 1019.”
“Willful misconduct” has been so frequently defined in recent decisions that its definition cannot now be regarded as in doubt. Howard v. Howard, 132 Cal. App. 124, 22 P. (2d) 279; Walker v. Bacon, 132 Cal. App. 625, 23 P.(2d) 520; Turner v. Standard Oil Co. of Cal., 134 Cal. App. 622, 25 P. (2d) 988; Olson v. Gay (Cal. App.) 27 P.(2d) 922, 924; Forsman v. Colton (Cal. App.) 28 P.(2d) 429; Norton v. Puter (Cal. App.) 32 P.(2d) 172; Gibson v. Easley (Cal. App.) 32 P.(2d) 983; Manica v. Smith (Cal. App.) 33 P.(2d) 418, 420; Horning v. Gerlach (Cal. App.) 34 P.(2d) 504. In Olson v. Gay, supra, quoting from Walker v. Bacon, supra, it was said: “‘Willful misconduct is willfully, that is, intentionally, doing something which a driver should not do, or failing to do something which he could do in the operation of a motor vehicle under circumstances from which an accident and injury to the passenger would be probable.”’
“Where liability attaches only for gross negligence, it is for the jury, under proper instructions by the court, to pass upon the question whether such negligence exists.” Krause v. Rarity, 210 Cal. 644, at page 655, 293 P. 62, 66, 77 A. L. R. 1327. Undoubtedly the same is true as to willful misconduct, except in those cases where the court can say as a matter of law that it is not shown by the proven facts. In my opinion there is not sufficient showing of an abuse of discretion by the trial judge in granting the motion for new trial as to appellants, to justify its reversal here. I am assisted in reaching this conclusion by the analysis of the facts and application of the law to those facts by the court in the case of Olson v. Gay, supra, in which a petition for hearing was denied by the Supreme Court.
Appellants urge that because section 62 of the California Vehicle Act (St. 1923 p. 532, § 62, as amended by St. 1929, p. 522) and section 1714 1/414 of the Civil Code provide that the signer of a minor's application for an operator's license, in the one case, and the owner of an automobile used with implied or express consent, in the other, is liable for the negligence of the minor, or the user, no recovery can be had against Mr. and Mrs. Fowler by the guest of their son as such recovery can only be had for the willful misconduct and not the negligence of the young man.
In Walker v. Bacon, supra, at page 629 of 132 Cal. App., 23 P.(2d) 520, 521, it is said: “It invites difficulties to conclude that ‘willful misconduct’ is ‘something different’ from negligence. If there is no negligence, there can be no willful misconduct, for, if there be no negligence, the driver of an automobile must be operating it in accordance with all the rules of the road and the dictates of prudence and caution. It is obvious that under such circumstances there could be no willful misconduct. It should be true that willful misconduct is ‘more than negligence, however gross.’ Gross negligence has been defined as “‘the want of slight diligence,” as “an entire failure to exercise care, or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the things and welfare of others,” and as “that want of care which would raise a presumption of the conscious indifference to consequences.”’ Howard v. Howard, supra; Krause v. Rarity, 210 Cal. 644, 293 P. 62, 77 A. L. R. 1327; 19 Cal. Jur. 554, and cases cited. When the Legislature in 1931 * * * omitted gross negligence from the grounds upon which a guest could recover damages against the owner, driver, or person responsible for the operation of the motor vehicle, it restricted the right of recovery to intoxication or willful misconduct. While negligence may be involved in willful misconduct, it is apparent that the Legislature intended to confine the right of recovery to a degree of carelessness and recklessness that is greater and beyond that which the law then knew and defined as gross negligence and which is ‘willful’ on the part of the responsible person.” In some cases the distinction between gross negligence and willful misconduct may be the willfulness, or the lack of willfulness, with which the act is done.
In Manica v. Smith, supra, we find the following: “We are of the opinion the conduct of the defendant Smith in recklessly driving the automobile in the manner above related amounts to gross negligence, and that it also constitutes willful misconduct. * * * From the foregoing definitions it is evident that acts or conduct which merely amount to gross negligence may not be aggravated enough to also characterize them as willful misconduct. Upon the contrary, acts which do amount to willful misconduct may also include gross negligence. In the present case, while the conduct of Smith does amount to willful misconduct, we are satisfied that it also constitutes gross negligence.”
In this state the degrees of negligence are recognized. Krause v. Rarity, supra. In my opinion willful misconduct is merely a degree of negligence, but of the highest or greatest degree. If this be true it follows that the term “negligence” includes its several degrees and there can be no understandable reason why the signer of a minor's application for an operator's license, who may become responsible for the negligence of the minor, and the owner of an automobile who is liable for the negligence of any person using it with his express or implied consent, should not be liable for the willful misconduct of such minor or person under the familiar rule of interpretation that “the greater contains the less.” Section 3536, Civ. Code. See, also, Taylor v. Cockrell, 116 Cal. App. 596, 3 P.(2d) 16.
In my opinion the order appealed from should be affirmed. It is so ordered.
The facts, as stated in appellants' opening brief, and declared by respondents to be sufficiently stated, are as follows:
“The plaintiff in this action is a personal friend of the defendant, Harold M. Fowler. She has been keeping company with Harold for some time and on the evening of the accident had been entertained at the home of defendant's parents.
“Pursuant to a mutual understanding the young people started out in the automobile of H. M. Fowler and Watha B. Fowler, parents of Harold M. Fowler, to go to a theatre in Fresno.
“On the way to the show, and after they had called for Elmo Stevenson, a mutual friend, the Essex car, while being driven by Harold M. Fowler, was involved in a collision with a DeSoto automobile driven by defendant Peckinpah, at the intersection of Del Rey Avenue and Belmont Avenue near the city of Fresno.
“The Essex car driven by Harold M. Fowler was traveling in a southerly direction on its right hand side of Del Rey Avenue before and while entering the intersection.
“Harold testified that when he was 100 feet from the intersection he was traveling at a speed of twenty-eight miles per hour. He looked to his right and saw the lights of an approaching car on Belmont Avenue. The automobile driven by the defendant, Peckinpah, was at that time two hundred feet from the intersection or twice as far from the intersection as was the car driven by appellant, Harold M. Fowler. After looking again to observe the lights of the approaching car, Harold continued towards the intersection believing he had ample time to negotiate a crossing ahead of the Peckinpah car, which was beyond the row of fig trees, or about two hundred feet from the intersection when Harold observed its lights. As the Essex car was entering the intersection Harold observed that the car, driven by defendant Peckinpah, was near the west line of the intersection. Harold immediately applied the brakes and swerved the car to the left. The DeSoto car came straight ahead colliding with the Essex car. After the collision, the DeSoto traveled approximately seventy-five feet beyond the intersection before overturning.
“There is no testimony that the defendant, Edgar M. Peckinpah, did, or even attempted to, decrease the speed of his automobile before the collision. The impact occurred near the center of Del Rey Avenue and on the south side of Belmont. The Essex car, driven by Harold M. Fowler, after entering the intersection, had crossed over more than one-half of Belmont Avenue which is twenty-three feet in width, whereas the DeSoto car had traveled somewhat less than one-half the width of Del Rey Avenue which is but fifteen feet wide, before the point of collision.
“The plaintiff brought suit against the defendant Fowler, and Edgar M. Peckinpah and Mary Louise Peckinpah and after a three day trial before the court, judgment was entered in favor of all of the defendants and against the plaintiff.
“Upon the hearing of a motion for a new trial the trial judge granted plaintiff's motion for a new trial as to defendants Harold M. Fowler, H. M. Fowler and Watha B. Fowler, and denied said motion as to defendants, Edgar M. Peckinpah and Mary Louise Peckinpah.
“From said order granting a new trial, the defendants Fowler are appealing.”
The question to be considered is whether the evidence is sufficient to warrant a judgment in favor of plaintiff on the basis of willful misconduct.
In recent months this court has had before it several cases involving the question of “willful misconduct” as used in section 1413/434 of the California Vehicle Act (St. 1923, p. 517, § 1413/434, as added by St. 1929, p. 1580, as amended by St. 1931, p. 1693), and in some of the decisions it will be observed that the term “willful misconduct” is interpreted to mean something that involves positive elements rather than the merely negative elements of negligence or carelessness. Practically all of the cases have attempted to define “willful misconduct” without any definitely satisfactory results. The incongruity in the decisions is in mixing negligence with willful misconduct. The two differ in their essential elements and, as I shall endeavor to point out, the principal and governing distinction rests upon design and intention to bring about the injury complained of.
The law in California prior to 1929 gave a guest passenger a cause of action against a driver of a motor vehicle for injuries based upon ordinary negligence. In 1929 the Legislature added section 1413/434 to the California Vehicle Act by which section the right of the guest to recover was made dependent upon proof of gross negligence, willful misconduct, or intoxication of the driver. The reason for this change is readily apparent. The Supreme Court of Michigan, in the case of Naudzius v. Lahr, 253 Mich. 216, 234 N. W. 581, 583, 74 A. L. R. 1189, in commenting upon a similar statute, said: “It would be threshing old straw to discuss the accepted fact that the motorcar has presented social, financial, and governmental problems which justify the Legislature in reasonably classifying it apart from other vehicles in the enactment of laws. * * * Generally, gratuitous passengers are relatives or friends. Exceptionally, they are mere acquaintances, invited chance pedestrians, or those who deliberately solicit rides. Since the rule of liability was announced in Roy v. Kirn, 208 Mich. 571, 175 N. W. 475, there has been considerable litigation between guests and hosts. Some between husband and wife or other close relatives has found its way to this court. (Citing cases.) In many, probably most, of the cases between relatives or friends the real defendant is an insurance company. Ordinary negligence is not hard to prove if guest and host co-operate to that end. It is conceivable that such actions are not always unattended by collusion, perjury, and consequent fraud upon the court. * * * It is not inconceivable that some passengers who solicit rides may manufacture claims for liability. Groups of young folks, engaged upon a joint enterprise of social enjoyment in a borrowed car, have been known to combine to charge the owner for an accident. * * *”
The amendment of 1929 not proving sufficient to accomplish the end desired, the Legislature in 1931 eliminated “gross negligence” from the statute, making it necessary, aside from intoxication, to prove willful misconduct in order to recover on account of injuries received by a guest. Howard v. Howard, 132 Cal. App. 124, 22 P.(2d) 279. In the case of Walker v. Bacon, 132 Cal. App. 625, 23 P. (2d) 520, 522, it was said that “while negligence may be involved in willful misconduct, it is apparent that the Legislature intended to confine the right of recovery to a degree of carelessness and recklessness that is greater and beyond that which the law then knew and defined as gross negligence and which is ‘willful’ on the part of the responsible person.” Again on page 629 of 132 Cal. App., 23 P.(2d) 520, 521, the court says: “It invites difficulties to conclude that ‘willful misconduct’ is ‘something different’ from negligence.” This latter statement had reference to the language in Howard v. Howard, supra, which in turn was taken from the earlier case of Helme v. Great Western Milling Co., 43 Cal. App. 416, 185 P. 510, 512, and which declared that “‘willful misconduct’ means something different from and more than negligence, however gross.” The court in the Walker Case went on to point out that “if there is no negligence, there can be no willful misconduct, for, if there be no negligence, the driver of an automobile must be operating it in accordance with all the rules of the road and the dictates of prudence and caution.” Thus the rule laid down in the Helme Case is narrowed by the exemption of the words “different from,” and the modified rule as given in the Walker Case is based on the contention that in order to have willful misconduct there necessarily must be negligence of some kind.
With this contention I cannot agree. I do not believe it correct to say that willful misconduct is an ultimate form of negligence. The two are not properly associated with each other. They imply different situations. Negligence implies inadvertence; willful misconduct implies intentional acts. Whenever the element of knowledge and willfulness enters into an act, it ceases to be “negligence.” and becomes at least “willful misconduct.” Malone v. Clemow, 111 Cal. App. 13, 295 P. 70. In order to be intentional or wanton there must be actual knowledge of the danger to the other person, and actual intent to injure him. Holwerson v. St. Louis & S. Ry. Co., 157 Mo. 216, 57 S. W. 770, 777, 50 L. R. A. 850. Often we find the terms “willful” and “wanton” used synonymously and yet, a study of the two words will show they do not express the same thing. They should not be used as labels to mark different brands of the same product. In Webster's Unabridged Dictionary the following definitions are given: “Willful: Governed by the will without yielding to reason; obstinate, stubborn. Done by design; intentional; as, willful murder. Wanton: Reckless, heedless; malicious.” The word “will” is given the following meaning: “That faculty or power of the mind by which we determine either to do or not to do something which we conceive to be in our power.” In Crabb's English Synonyms the learned philologist has this to say: “The will is that faculty of the soul which is the most prompt and decisive; it immediately impels to action. We can will nothing but what we can effect. The want of will renders a person negligent.”
And while we are on the subject of definitions let us see what is given for the words “intent” and “design.” “Intent–The act of focusing the mind on an object; aim; purpose; whatever may be or may have been designed.” A person is intent when his mind is on the stretch toward an object. “Intention is manifest when the mind, with great earnestness, and of choice, fixes its view on any idea.” It is a “determination to act in a particular manner.” Design: “To contrive for a purpose; to project with an end in view; to set apart in intention; to purpose; to intend; a scheme or plan in the mind.” See Estate of Olmsted, 122 Cal. 224, at page 232, 54 P. 745. There should be no misunderstanding as to the employment of the adjective “willful” in the statute under construction. Misconduct, of course, is wrong conduct, to act or behave in an improper manner. The word “willful” as used in the statute describes the kind of misconduct that the Legislature had in mind. It is the attribute which expresses a particular quality of misconduct, the adjective which limits and qualifies the misconduct to acts dictated by the will of the actor. The literature is replete with epigrams apropos of our subject. Let us observe three instances where learned writers have given their happy, terse, and interestingly clear interpretations of the use of “will.” “No action will be considered blameless, unless the will was so, for by the will the act was dictated.” Seneca. “Whatever the will commands the whole of man must do; the empire of the will over all the faculties being absolutely over-ruling and despotic.” Robert South. “To commit the execution of a purpose to one who disapproves of the plan it is to employ but one-third of the man; his heart and head are against you, you have commanded only his hands.” Nathaniel Colton.
Any negligence may be misconduct; but “willful misconduct” implies that the misconduct must be more than negligence. It implies intentional misconduct, misconduct dictated by the will of the wrongdoer. In negligence the element of intent is lacking. Negligence is opposed to diligence, and signifies the absence of care. It is negative in its nature, implying a failure of duty, and excluding the idea of intentional wrong, and it follows that the moment a person wills to do an injury he ceases to be negligent. Whiteford v. Yuba City Union High School Dist., 117 Cal. App. 462, 4 P.(2d) 266.
“‘An act is willfully done when done with deliberation, and not through surprise or confusion, or a bona fide mistake.’ To do a thing willfully is to do it by design, with set purpose. To do a thing with deliberation is to do it after examining the reasons for and against a choice,–after consideration and reflection. After indulging in this mental process, if an act is done as the result of it, it is a willful act.” People v. Sheldon, 68 Cal. 434, at page 437, 9 P. 457, 459. Willful misconduct may be characterized as conduct willfully designed to accomplish a specific result; not aimless of purpose or regardless of results. It had been held that even in cases of wanton wrongdoing no question of negligence is involved. The Holwerson Case has this to say upon that point: “‘When the wrongdoing of the defendant is merely negligence, the contributory negligence of the plaintiff may, as is well understood, operate as a defense, but, when the defendant's conduct is willful, it is no longer negligence, and, when the injury sustained by the plaintiff is the result of the wanton and willful act of the defendant, the question of the plaintiff's contributory negligence as a defense cannot arise. In order to constitute contributory negligence on the part of the plaintiff, there must be negligence on the part of the defendant. It is accordingly the settled rule that when the defendant's conduct amounts to willfulness, and when the mischief is occasioned by his intentional and wanton wrongdoing, the plaintiff's negligence is no defense. Thus, in a late case in Illinois, it was said: “If the injury to the plaintiff was caused by the needless, and reckless, willful, or wanton, sounding of the whistle, her negligence in approaching the crossing, and driving so close to the track as to cause her team to be frightened by the cars, in no way affects her right to recover.””’
One can conceive, however, of cases where wantonness would be negligence, for, taking the definition just given–a reckless act, or an act heedlessly done would be acts done with an indifference to the welfare of others, which, after all, is what is known in law as negligence.
But it is not correct to attach any degree of negligence to acts which are done willfully.
Negligence, even when gross, is but an omission of duty. It is not designed and intentional mischief. In Tognazzini v. Freeman, 18 Cal. App. 468, 123 P. 540, 543, it was said: “Notwithstanding the confused and indiscriminate use at times of the terms ‘negligence’ and ‘willfulness' by judges and text-writers, it is certain that the weight of authority supports the view that those terms have a distinct and well-defined meaning, which is clearly pointed out in Holwerson v. St. Louis, etc., Co. [157 Mo. 216, 50 L. R. A. 850, 57 S. W. 774], supra, where it is said: ‘By “negligence” is meant ordinary negligence–a term the significance of which is reasonably well fixed. By gross negligence is meant exceeding negligence–that which is mere inadvertence in a superlative degree. * * * By “willful negligence” is meant not strictly negligence at all, to speak exactly, since negligence implies inadvertence, and whenever there is an exercise of will in a particular direction there is an end of inadvertence, but rather an intentional failure to perform a manifest duty, which is important to the person injured in preventing the injury, in reckless disregard of the consequences as affecting the life or property of another. Such conduct is not negligence in any proper sense, and the term “willful negligence,” if these words are to be interpreted with scientific accuracy, is a misnomer.”’ Dyer v. McCorkle (Cal. App.) 274 P. 587.
In the case of Kastel v. Stieber, 215 Cal. 37, 8 P.(2d) 474, 478, the court cautioned: “‘We should not confuse “gross negligence” with “willful misconduct,” because there is a clear distinction between the two terms. In Helme v. Great Western Milling Co., supra, the court said: “‘Willful misconduct’ means something different from and more than negligence, however gross. * * * The mere failure to perform a statutory duty is not, alone, willful misconduct. * * * To constitute ‘willful misconduct’ there must be actual knowledge, or that which in the law is esteemed to be the equivalent to actual knowledge, or the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury.””' By striking the words “gross negligence” from the statute the Legislature could have meant nothing else but to take away from the guest the right to recover in cases where the injury complained of was caused by the negligence of the driver. It intended to restrict the right of recovery to willful misconduct and intoxication. Any other construction would deny the true meaning and import of the terms gross negligence and willful misconduct, and nullify the plain intent of the Legislature.
The knowledge or state of mind of the defendant with reference to the probability of injury to another is an important matter to be considered in determining whether his conduct toward the plaintiff is willful, wanton, and reckless. To establish such conduct the plaintiff must prove that the wrongdoer inflicted the injury intentionally or was “so utterly indifferent to the rights of others, that he acts as if such rights did not exist.” Query v. Howe, 273 Mass. 92, 172 N. E. 887, 888.
Willful misconduct within the purview of section 1413/434 of the California Vehicle Act would be conduct on the part of the driver dictated by a will, intent, and purpose to bring about the injury complained of. This conduct may be either positive or negative, acts of commission or omission, but in all cases there must exist the intent to accomplish a specific result. Intent implies knowledge. To do a thing knowingly is to do it with knowledge and clear perception of the facts and situations; designedly. To do a thing willfully is to do it knowingly. People v. Calvert, 93 Cal. App. 568, at page 573, 269 P. 969; People v. Swiggy, 69 Cal. App. 574, at page 580, 232 P. 174.
The evidence in this case before us does not justify a finding for the plaintiff based upon willful misconduct. Not even the plaintiff, who contends that the driver, Harold Fowler, tried to “beat the Peckinpah car to the intersection,” would want to say that Harold Fowler desired to injure plaintiff and to that end intentionally wrecked his car. Nor could it be said that Harold Fowler's conduct was in utter disregard of, or that he was utterly indifferent to the rights of Anne Meek. Considering the evidence in the aspect most favorable to the plaintiff, it does not appear that the defendant was wantonly reckless in exposing the plaintiff to danger, nor did his conduct partake of the nature of a willful, intentional wrong.
The other propositions raised by appellant are not considered, in view of the evidence not supporting an action against the defendant Harold Fowler based upon willful misconduct.
MARKS, Justice.
I concur: BARNARD, Presiding Justice.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: Civ. 1322.
Decided: August 15, 1934
Court: District Court of Appeal, Fourth District, California.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)